§ Order of the Day for the Second Reading, read.
in moving that the Bill be now read the second time, said he did not expect that his Motion would receive their Lordships' undivided attention in the midst of a Ministerial crisis; but this was a question of a very peculiar character, and interesting a very large body of the people. It was the seventh time that the question had come before their Lordships' House, and therefore in moving the second reading of the Bill it was not necessary that he should enter into the question at any length. Neither did he propose to discuss the alleged Scriptural prohibition against the marriages which this Bill proposed to legalize, further than to remind their Lordships that this country stood alone in holding that such marriages were prohibited 1871 by Scriptural ordinance. When the Church of Rome was the Established Church of England, such marriages were permitted, as they were in all Roman Catholic countries, by dispensation. In The Speaker's Commentary—the last authoritative voice of the Church of England—he found this statement in reference to the passage in the 18th chapter of Leviticus—The rule, as it here stands, would seem to bear no other meaning than that a man is not to form a connection with his wife's sister while his wife is alive. It appears to follow that the law permitted marriage with the sister of a deceased wife. A limitation being expressly laid down in the words, 'beside the other in her lifetime,' it may be inferred that, when the limitation is removed, the prohibition loses its force, and permission is implied. The testimony of the Rabbinical Jews in the Targums, the Mishna, and their later writings, that of the Hellenistic Jews in the Septuagint and Philo, that of the early and mediaeval Church in the old Italic, the Vulgate, with the other early versions of the Old Testament, and in every reference to the text in the Fathers and Schoolmen, are unanimous in supporting, or in not in any wise opposing, the common rendering of the passage. This interpretation appears, indeed, to have stood its ground unchallenged from the third century before Christ to the middle of the 16th century after Christ.There was no country, whether Roman Catholic or Protestant, in which those marriages might not be performed except England. In the United States not only were they legal, but an exactly opposite view was entertained in respect of them to that urged against them in this country, for they were regarded as a means of binding family ties still closer. In Canada also they were legal, and his noble Friend the Secretary for the Colonies (the Earl of Kimberley) had permitted the legalization of those marriages in two of our most important Colonies. Therefore the matter stood in this position—that Englishmen in England could not contract these marriages which in almost every other State in the world they were able to contract with perfect legality. This conflict of law therefore raised a question of vast difficulty relating to the law of domicile, which would have to be submitted to the interpretation of lawyers, and would bring grave discomfort to a large portion of the population. If this was a question of opinion—and it was no more—would their Lordships feel justified in making their individual opinions prevail against that of thousands of their 1872 fellow-countrymen who contracted these marriages, and the very much larger number who sanctioned them, and held that there ought to be no legal prohibition against them? Are they invested with legislative power by the Constitution of this country to pronounce whether other men acting on their own free judgment should do, or abstain from doing, any act socially wise or unwise, prudent or imprudent, convenient or inconvenient, in the domestic circle in which each one lives? Are the members of a tribunal of social policy inquisitors of the manners of other men? Is it just that any man should be able to point to any one of their Lordships and say—That man, to whom I have done no injury, inflicts a serious wound on the legitimate happiness of my daily life. Living in the North of England he knew that opinion on the subject in that part of the country was what he had just stated. These marriages were of frequent occurrence, and he was compelled to say that they often led to collusion. It was scarcely necessary to remind their Lordships that up to the year 1835 these marriages were contracted with perfect facility and legality; but at that time Lord Lyndhurst's Act placed the law of this country in the unnatural position of holding that up to a certain day those marriages were right and legal, but after that day they were positively incestuous and illegal. There might have been reasons for this distinction, but if so, they were reasons which plain common sense people would not appreciate or even see, and people went on contracting these marriages with perfect facility. He implored their Lordships to alter this law out of regard to the morality of the people. By the constitution of that House their Lordships represented the public opinion of the country, and he would appeal to them whether they would allow the continuance of such an injustice. The question had been forced upon his attention. Observing the evils that were brought about by the existing state of the law, distinguished clergymen of the Established Church had given their opinion in favour of legalizing these marriages, and in reference to the Petitions presented by so many thousand Dissenters, and between 2,000 and 3,000 Dissenting clergymen, through the Archbishop of Canterbury, he would ask 1873 whether that did not show a good feeling which the most rev. and right rev. Prelates would do well to recognize? He knew it was said that much weight ought not to be attached to the Petitions laid on their Lordships Table and the Table of the other House of Parliament in favour of the Bill, because they were got up by a machinery. Well, he was aware of that—he was a part of that machinery himself. It consisted in those who thought that the law ought to be altered talking to others on this subject and enlisting opinion in favour of the change proposed by this Bill. The Petitions presented to their Lordships House in favour of the Bill were signed by nearly a quarter of a million of names. That number of signatures could not have been procured by artificial means. There must be a substratum of public opinion beneath such a manifestation. If their Lordships rejected this Bill he could not hold out any hope that there would be a cessation of agitation in its favour. On the contrary, he believed that agitation would go on year after year with more or less success. The people who contracted such marriages found that they retained the good opinion of their neighbours at the same time that they were doing what Parliament said was an illegal act. That was not a wholesome state of things; and therefore if their Lordships rejected the Bill that evening they must not imagine that they would be permanently victorious. The Bill would be carried when the sense of injury was turned into exasperation, when the sense of injustice had become one of settled animosity; it would be carried when their Lordships' House yielded either from lassitude, or because it could not resist the demand of the people any longer. Many people were watching with anxiety the course of legislation on this subject, and though their Lordships might reject the Bill on this occasion they must not suppose that they would not be addressed again and again. He believed that justice and good policy required that their Lordships should not delay the passing of the measure till such a state of circumstances had arisen, and therefore he begged to move that the Bill be now read a second time.
§ Moved, "That the Bill be now read 2a."—(The Lord Houghton.)1874
* My Lords, as one of the oldest supporters of this cause in your House, I must crave your indulgence for a few minutes. Here is again brought before you, I believe for the seventh time, a real and serious grievance, which the other House of Parliament has several times consented to redress, which Her Majesty's Government have lately found it expedient to consent to the redress of in her Australian colonies, and, for the retention of which here no good or valid reason has, as yet, been proved to exist. As for the old pretence, for I can call it no other, of a Scriptural prohibition, that, I can venture to say, is supported neither by fact nor by any tenable argument of induction or analogy. It was once attempted to be inferred from an obscure phrase in the 18th chapter of Leviticus, though the case itself does not occur. But I beg you to observe that wherever a prohibition depends for its object solely upon this one phrase there, whatever it may mean, it is scarcely possible that it can mean marriage. This occurs twice—first in the 7th verse and secondly in the 14th. The object of prohibition in the 7th verse is a man's own father and mother; in the 14thhis uncle. The phrase occurs, I believe, in every verse between, but supported by other words, but if in these it has any specific meaning of the kind, the sense would point rather to illicit intercourse than to marriage; for instance, the father's wife, and other wives of the family, whom no man could marry, but with whom he might possibly intrigue. The clerical debators in this House have usually selected the 6th, the 16th, and the 18th verses of this chapter. In the6th, taking advantage of the sole word "kin" as it appears in our version, they have argued that kin includes affinity. But they have omitted to apprise you of the little adjunct "sarkos" in the Septuagint, and the corresponding "Sanguinis" in the Vulgate, which, expressing blood relationship, would decide the question absolutely against affinity, and I am credibly informed it is the same in Hebrew. Next, in the 16th verse, hoping, I suppose, to get some support to their attempted analogy—the prohibition relating to a brother's wife—but without any authority that I could ever hear of, they insist upon reading widow instead of wife, although the 1875 English version itself says wife, and, moreover—and I beg special attention to this—the remainder of that verse gives a reason for that prohibition, "Because that nakedness is thy brother's," which it could not well be if he were dead. We now come to the notorious 18th verse, which we, in our simplicity, had always supposed must decide this part of the question in our favour. How do you suppose they attempt to get over this? They actually venture to plead the marginal reading, and say that "sister" does not mean sister, but only sister woman. Now, surely such very sharp-sighted advocates might have perceived that such reading would make Leviticus forbid even bigamy to the early Israelites, while they perfectly know that polygamy is sanctioned throughout the Old Testament, and prevailed, un reproved, throughout the whole Jewish polity. The Jews, too, themselves never supposed that marriage with a deceased wife's sister to be forbidden, but, on the contrary, and very sensibly, as the very best match a widower could make, and to which, where there are children, they give special facilities. The only remaining clerical point that occurs to me is one which seems to me to lie at the very root of this question of affinity; it is neither more nor less than the ancient dogma of man and wife being—not as you have all probably been in the habit of supposing figuratively—but actually, really, substantially one flesh. Now, if this be an article of religion, I would ask why we have dissented from the old Roman dogma of transubstantiation? They both rest on the same identical ground of literal translation of words, and, of the two, perhaps this consubstantiation most contradicts our senses. But how, rejecting the one, can we maintain the other? But let it pass, let man and wife be one flesh-that they are not always one spirit, I fear the warmest supporters of the dogma cantestify—but let them be one flesh, was this the creed of the people who buried Sin bad with his wife? Would you like to carry it out to the same logical conclusion? The being ever so much one flesh could only affect themselves or the descendants, and could not, in any justice or common sense, be held to affect collaterals who have taken no part in the ceremony which is supposed to 1876 have worked the miracle. But, say our opponents, it would be incest; not unless the first marriage had been incestuous. It is a curious idea of incest to call it incest to marry an alien in blood when it is not incest to marry with a first cousin; but are sisters-in-law sisters? This is just what they are not, for, except in the instance of this one disqualification, the law utterly ignores the relationship. Brothers and sisters, there so-called in law, cannot inherit from each other, and if one leaves a legacy to the other, not one farthing of the Legacy Tax will be remitted. They are no longer brother and sister, but strangers. But they are brother and sister in church law; very well, then, let church law, instead of civil law, enforce the penalty. It is all we ask. Give to those wishing to marry their deceased wife's relatives the same privilege of making a valid marriage before the registrar as you have given to Dissenters and all who object to the church service, and confirm, of course, all marriages already contracted as you did on another former notorious occasion, which has produced half the evil, and every reasonable man amongst us will be satisfied, and the church may maintain its "non possumus." But I must now call your attention to the Church marriage service itself. It defines and limits the contract, "Till death do us part;" when death occurs, then, the thing is at an end, the survivor is free, free to become one flesh with another, and the contract being thus, upon its own terms, finished and ended as to the principals, must, a fortiori, be annulled as to all others connected only by ties derived from that contract; to deny this would belike saying that a man who had been security on a bond must be held liable after that bond had been discharged and cancelled. We will now turn to the social side of the question, and here there would, no doubt, be room for difference of prospective opinion as to the effect of a relaxation of the law. But, happily, we are not left to mere conjecture upon this point, for the experiment has been tried by every, or almost every Protestant state in Europe and America, and the result is before us in unimpeachable testimony of credible witnesses of every class—Divines, Jurists, and Laymen—and not a trace of any of the predicted evils has appeared. But it has been 1877 emphatically denied on the other sides that this is, in any degree, a poor man' question. I think a little consideration of circumstances will show this to be a mistake, for mere numbers must give an excess of cases where the deceased wife's sister must, almost of necessity, take charge of a labourer's young family. A rich man may buy what aid he requires, but a poor man must depend upon that of some female relation or connection, whose natural affection for himself or his children may induce her to undertake the charge. Should this happen, as it often must, to be the late wife's sister, and probably with some family likeness in person or in mind, then, I say, the mutual interest in the children, and the almost necessary familiarities of cottage cohabitation, are likely to produce their natural effects. Then comes in this law to complete the misfortune in enforced immorality, and if any attempt be made to avoid this, too possibly in the vilest treachery and ruin of the devoted woman, I say all this evil is chargeable on this law; but for it the parties would have been legally married, and the orphan children have had their best chance of an affectionate and kind stepmother. I can see no countervailing evil in the repeal of such a law; but if any unforeseen evil or inconvenience should arise, I beg you to consider are there no public evils or inconveniences in the retention of the law? Is it no evil for us to refuse redress to the numbers, year after year, petitioning us not to withhold a boon of justice, their own representatives have over and over again conceded to them?—and that, without any reason, the justice or validity of which they can recognise? Is it no evil that the Church is made to appear the principal cause of the oppression of which they complain, and that, too, without being able to show any real reason for its hostility, from those Scriptures to which all are willing to bow. Is it no evil to un wife numerous respectable women who know that before God their status is as sacred as that of any wives in the kingdoms, and would be so considered in every other land but their own, which yet boasts of its Protestantism and liberty. To bastardize their children, whom they know to be as legitimate as any of yourselves, and who everywhere else would be generally acknowledged to be so, but who here if 1878 ever so carefully provided for by the testamentary foresight of their parents, must be mulcted of nine per cent. Of their inheritance through the operation of this senseless and oppressive prohibition. Surely these evils, positive and present, may well be held to outweigh the vague, not to say imaginary, vaticinations of the opponents of this Bill, flatly contradicted as they are by the experience of other countries, whose real liberty may shame the vaunted liberty of Great Britain. It is calculated that there are at this day some 50,000 persons, most of them children or descendants of these marriages, who have broken no law, just or unjust, and who are still suffering under this one, victims of a law originating in ancient superstition, which has long ceased to command the respect of general society, unsupported by which it is powerless to prevent, and can only avenge its infraction upon the guiltless offspring of the offenders. Will you then insist on retaining an effete law, punishing the innocent, and inductive of immorality of the grossest kind and the most treacherous, now that it has been again condemned by overwhelming majorities of the People's House of Parliament, encouraged by whose reiterated verdict these oppressed people again venture to come before you, humbly imploring you no longer to withhold rights which, by the Laws of God and Nature, and by the votes of their representatives, are theirs.
§ EARL BEAUCHAMP
said, that in moving that the Bill be read a second time that day six months, he did not think he need go into all the arguments that year after year the promoters of the Bill did not scruple to bring forward; but the noble Viscount who had just sat down, had used the most startling argument yet put forward by the promoters of the measure. The noble Viscount had told them that as the marriage service of the Church of England contained the words "till death do us part," when death intervened and dissolved the marriage contract that put an end to all obligations except the tie binding parents to children. But if that argument were good, this Bill was a miserably imperfect measure, for it dealt only with a fragment of an important question, leaving untouched all other relations. The argument involved consequences too horrible to contemplate, and might 1879 be held to justify marriages about the incestuous character of which there could be no doubt; and he trusted it would never again be advanced. As to the often contested passage in Leviticus, he denied that the opponents of the Bill based their objections solely on the prohibition contained in that passage; but it was true that the only Scriptural argument in favour of the Bill was founded upon this one passage, which was confessedly of doubtful interpretation; that was the position taken by the promoters of the Bill, and not by those who opposed it. The supporters of the Bill rested the whole of their Scriptural argument on that one obscure verse—but that passage, he held, ought to be taken in conjunction with all the other parts of Divine law laying down the principles on which marriage was founded. A great deal had been said in this matter about the people of England, and the number of Petitions that had been presented in its favour, and the noble Baron had told their Lordships that a quarter of a million persons had signed Petitions praying their Lordships to pass it. But he wished the noble Lord had favoured them with some information as to the way in which these Petitions had been got up and the signatures obtained, and how the funds had been raised to promote the agitation, for everyone at all conversant with the subject must be aware that there had been the most lavish expenditure.
§ EARL BEAUCHAMP
Those who had watched the movement, knowing what hosts of lawyers' clerks had been employed, how many pamphlets had been distributed, and how many meetings had been held, could not doubt that an enormous expenditure of money had been incurred in order to create a certain amount of fictitious public opinion. He should learn with respect the opinions of the people of England when they were properly ascertained, but he could not attach much value to Petitions however large and imposing when he knew that they had been got up in the manner described by a person on whose information he could rely. His correspondent, who was in Birmingham at the end of February, saw persons placed at the corners of the principal streets in charge of tables on which were spread large sheets of paper with the usual heading 1880 in favour of the Bill. The men solicited the passers-by to sign, and women and boys signed indiscriminately; but no men or respectably dressed women signed. In such a manner it was easy to get up a formidable array of Petitions of little value. Much had been said about the number of times the House of Commons had pronounced in favour of this or a similar measure:—it was desirable, therefore, to inquire how the House of Commons had dealt with it. The question had been submitted to seven Parliaments since 1841. In that year a similar measure to this, but of which this Bill was only a portion, was rejected by the House of Commons. The Houses elected in1847, 1852, and 1857, passed the Bill; but it was rejected by the House selected in 1859 and 1865. The House of Commons, elected in 1868, passed the Bill in 1869 by a very large majority. But what had happened since? Why, that majority of nearly 100 of 1869 had fallen in the present year to 40. The fact remained that of seven Houses of Commons to which the Bill had been submitted, three had absolutely rejected it, three had allowed it to pass, and in the present House the majority had considerably decreased. Stress had been laid upon the circumstance that whereas formerly there had been a large preponderance of opinion in Scotland against the Bill, in the last division the Scotch Members for and against it were nearly equal; but the noble Lord forgot to add that the promoters of the Bill, guided by experience, had taken pains to bring the measure forward at the earliest possible moment. They knew that the majority of the Irish and Scotch Members were opposed to the Bill; but the promoters, being able tacticians, had taken care to secure divisions before the majority of Scotch and Irish Members had arrived in any great numbers to attend their Parliamentary duties. On this account the last division was no test of the feeling of the people of Scotland on this question. The people of Scotland were very disputatious, but if there was one point on which the Presbyterians were unanimous it was in their opposition to the change proposed by this Bill. But the real question was, not what was the opinion of the people of England, but was the measure founded on justice and truth, or fatal to the domestic peace and happiness of the people of England? 1881 The noble Baron who moved the second reading, following Lord Penzance, had thought proper to ridicule the doctrine that man and wife were one flesh; but if that intelligible doctrine was to be swept away, what security would they have for the morality of family life? He should like to know what was to be substituted for it? The law as it now stood was intelligible in the restrictions it imposed, and he implored their Lordships not to do away with it and so leave the community in reference to a most important matter without chart or guide. In support of the social argument the interests of the poor were urged with a total disregard to the facts of the case, because this was not a poor man's question. The women of poor families having to earn their own living, often in service, were seldom able to reside in a brother-in-law's house, so that poor people were rarely so circumstanced that the provisions of the Bill would in any way affect them, and he hoped the House would not be led away by that argument, for the interests of the poor as well as of the rich would he believed be best served by maintaining the law as it stood, and thus preserving that family peace which was so conducive to the morality of the English people. The promoters of the Bill, he might add, had never yet faced the question whether the prohibitions of the Law of Moses were exhaustive or not. That was to say, whether no prohibition was binding which was not expressly, and in words forbidden, by the Law of Moses. If they were exhaustive, he would remind them, there was no law to prevent marriages of the most shocking description—even the marriage of a father and daughter. It might be said that such a suggestion was too horrible to be entertained, and was not to be taken into account as an argument on the subject. But he must point out that according to the correspondent of The New York Times there were parts of America where men were found to marry their wives' mothers. In fact, it was obvious that the fair principle of interpretation implied when a man was forbidden to marry his brother's wife, he was equally forbidden to marry his wife's sister. If this Bill became law the whole of the prohibitions with regard to consanguinity and affinity would have to be revised, and, therefore, he implored their 1882 Lordships to reject it. The noble Baron asked their Lordships to pass this Bill, and settle the question; but, so far from the passing of this Bill settling the question, it would be the starting point for new agitations, and the same machinery would be set in motion to obtain the sanction of the Legislature to marriages still more objectionable. To show the danger in that direction, he might mention that when he was in the House of Commons a Petition was presented from the communicants of a Dissenting body in Dundee in favour of a man being allowed to have more wives than one, and the petitioners used arguments so familiar to their Lordships in reference to this very Bill. So that in sanctioning this Bill their Lordships might be taking the first step in a course which would be productive of much evil, and might lead to consequences of which they little dreamt. Again, a most serious difficulty would arise from placing the law of the State in conflict with the law of the Church. Before the year 1835, these marriages were void, but the temporal Courts could take no cognizance of the matter until the Ecclesiastical Courts, which alone could take cognizance of spiritual causes, had pronounced them void. Therefore, although the law at that time gave no sanction to such marriages, there was a practical difficulty in the relation between the temporal and Ecclesiastical Courts, and the Act of 1835 merely enabled the temporal Courts to take original cognizance of the illegality of such marriages. It had been said that prior to the Reformation the law in England was the same in this matter as in all Roman Catholic countries; but the noble Baron might have informed their Lordships that until the 16th century such marriages were quite unknown. If the noble Lord quoted Dr. Vaughan and Dr. Hook in favour of these marriages, it would be well that he should assure himself that they still entertained that opinion. There could be no doubt that an active personal canvass had been made to induce their Lordships to vote for the Bill; but he trusted that by their vote that night they would give an impartial verdict in favour of maintaining a law which had been productive of the purity of family life in England, and that they would not, by any considerations of what might be represented as 1883 personal hardship, be induced to sweep away a law which was consistent with itself, and which, if shattered or impaired, must lead to the commencement of an agitation of a most perilous and disastrous kind, and also deal a fatal blow at the domestic morality of this country.
§ An Amendment moved, to leave out("now") and insert ("this day six months").—(The Earl Beauchamp.)
§ LORD STANLEY OF ALDERLEY
said, he trusted their Lordships would consent to the second reading of the Bill. The objections urged against the Bill by those who were opposed to the change were two-fold. The first objection was urged by those who held that these marriages were contrary to the Divine command. That objection was founded upon a misinterpretation of the Levitical Law, which was now almost entirely given up; indeed, it was very difficult to say how such a misinterpretation could have arisen when the text of Leviticus was so clear in the sense of permitting, instead of prohibiting, them. He believed that the cause of the idea which certainly prevailed, or did prevail, that these marriages were forbidden by Divine command was simply this—that persons reading the Table of Affinity and Prohibited Degrees, which stated that persons in these relations were forbidden in Scripture to marry together, jumped to the conclusion that the prohibition was of Divine institution—losing sight of three small words which very much qualified that statement—these three words which followed after "Scripture" being "and our laws." Now, "and" was a disjunctive and not a copulative conjunction in that place, and the word "or" would have been more correct. It was known that the Catholic Church gave dispensations for these marriages; but the Papal dispensations were never granted except in relief of the law imposed by the Church—they never pretended to give dispensations from obedience to the Divine law. When at Rome, in 1869, during the General Council, he had learned from several Prelates that dispensations were more frequently and more readily granted for these marriages than for those between first cousins. As to the correct interpretation of the law in question, a small number of English objectors stood alone in their 1884 interpretation against the great body of the Catholics, the German Protestants and the Jews. England, indeed, was the only country in which the prohibition was maintained by law. The second objection was rather more difficult to meet, because it was well founded on the part of those who held it. It was founded on the law of the Catholic Church, or canon law. He had as much respect for the canon law, or ecclesiastical law, as the noble Earl who had just sat down (Earl Beauchamp) could have, but he did not admire it when it was incomplete and maimed, and deprived of its Court of Chancery for the relief of suitors, or, in other words, the power of appeal to the Vatican. Now, as the marriage of first cousins was prohibited by canon law, and was also undoubtedly objection able, why did not those who opposed this Bill, on the grounds of the wife's relations being the husband's relations, in consistency bring in a Bill to prohibit the marriage of first cousins? No doubt, their consistency would induce them to do so if they could:—then why should not the same prudence which prevented them attempting to place new restrictions which would not be endured, also prevent them from persisting in maintaining a restriction upon people who were in no way bound by it, since their consciences were not bound? The consistency of the Prelates of the Middle Ages led them to extend these restrictions on marriage with the wife's relations to marriage between a husband and the relations of the first husband of his wife, and between a second husband and the relations of the first husband. These restrictions went very much further than could be tolerated even in those times, and they were abolished by the General Lateran Council of 1215. These and other marriages not forbidden by Divine law must be left to the consciences of the contracting parties. The passing of Lord Lyndhurst's Act was, in fact, the invoking of the secular arm of the State—a proceeding which might be defended in a Catholic country on Catholic premises, but which it would be difficult to defend when had recourse to by a Church founded on the right of private judgment. The consciences of right rev. Prelates would be oppressed if they were asked to consecrate or even to sanction marriages which they felt 1885 bound to object to. But they were not asked to do so. The Bill provided that these marriages should be before the registrar, and the right rev. Prelates were only asked to suffer those who believed these marriages to be lawful, to contract them. By continuing to offer an active opposition to this Bill, and thereby constraining noble Lords who belonged to their flocks to vote against it, they not only inflicted a hardship upon Jews and Christians who did not follow canon or ecclesiastical law, but also upon Her Majesty's Catholic subjects, who, by Parliament law, were deprived of their privileges of relief through dispensations obtained by their own Prelates. The object of the restrictions imposed in the early days of the Church no doubt was to strengthen the idea of the sanctity of marriage, and of man and wife being one flesh, by treating the wife's relations as the husband's. That object, however, was no longer obtained by that means, now that the unity of Christendom was lost, and that these marriages could be lawfully contracted in other countries of Europe. On the contrary, a bad example was set up, and by these marriages being placed under the ban of the civil law, which was not universally upheld by religious law, a sort of half-way house was set up between marriage and the dispensing with marriage altogether. Some opponents of the Bill were yet more inconsistent—men who held ultra-Protestant opinions and fumed at canon law, who yet, by opposing the Bill, helped to rivet the chains of canon law round the necks of their countrymen. Such inconsistency could only be equalled by their drinking the "glorious, pious, and immortal memory" in toast and water, or with their glasses turned upside down. He would appeal to the noble and learned Lord on the Woolsack not to show his independence by giving his first vote against the Bill, and against his own side of the House.
THE BISHOP OF OXFORD
said, it had been claimed by noble Lords who were in favour of this Bill that England stood alone among the nations of Europe in opposition to these marriages. He (the Bishop of Oxford) on the contrary, was not aware of a single country in Europe in which the law stood as this Bill would leave it—a condition of entire confusion and intolerable wrong. Noble 1886 Lords who had spoken in favour of the Bill seemed to think that the prohibitions set forth in the Table of prohibited Degrees were a mere series of haphazard prohibitions strung together anyhow. So far, however, from its being the result of caprice or hazard the Table proceeded on a very precise and intelligible principle. No man was allowed to marry a woman descended from his own parents, and no woman to marry a man descended from her parents; and, in addition, the blood relations of the one were, for this purpose, put on the same footing as the blood relations of the other. These were the principles on which the Table of prohibited Degrees was based. If this were passed a part and only a part of one of these principles—that which made the blood relations of the wife the blood relations of the husband—would be lost, and this anomalous state of things would follow—that a man might marry his deceased wife's sister, but a woman might not marry her deceased husband's brother—or a man might marry his deceased wife's niece, while the woman might not marry the deceased husband's nephew. If this Bill passed one line of marriage would be legal and the children legitimate, and the other unlawful and incestuous, and the children illegitimate and subjected to a terrible degradation. This was an anomaly which would not stand, and if the Legislature sanctioned the one class of marriages it would soon have to remove the bar against the other. It might be replied that in these matters Parliament did not legislate by logic. Now, he did not insist on noble Lords paying respect to logic or reason; but whereas when his opinion was now asked on any such unions, he could say that they were forbidden on an intelligible principle which had been for 300 years the law of England, what, if the Bill passed, could he say to a woman marrying her husband's brother? He should be obliged to say that a precisely analogous union had been legalized, but that as persons had not subscribed, agitated, and petitioned, and had not tickled Nonconformist antipathies, that particular union remained illegal and incestuous. He knew it had been said that by passing this Bill they would simply be returning to the state of things which existed prior to the Act of 1835. But as a matter of fact, that Act did not contain one word relating to these marriages; 1887 what it did was to draw a retrospective distinction between consanguinity and affinity—the only logical distinction on which this case could rest. Unions between a wife and her deceased husband's brother, and between a man and his wife's niece, were logically involved in this Bill, otherwise an intolerable injustice and wrong would be committed. As to the alleged absence of a desire for these other unions, he had repeatedly met with or heard of cases in which persons had contracted or wished to contract them—especially the marriage of a man with his brother's widow. The canon law had nothing to do with the question, and though Scripture had much to do with it he had not urged that view of the matter. He could make every allowance which had led those in the background who were the real promoters of the Bill to put it forward year after year, ho could make every allowance for tender affection and strong passion which might induce persons who had perhaps been engaged for many years to seek a sanction to their illegal union from this House to the disregard of the feelings of the right rev. Bench; and there were many persons for whom he had the sincerest esteem and regard, to whom the removal of the existing restriction would be a relief from a conscientious restraint; and therefore he should be glad if he could conscientiously support a Bill which would be a great relief to such persons; but he had to consider, not individual affections and passions, but a consistent and tenable marriage law. Their Lordships were legislators, and were bound to consider what the probable effect of the passing of the Bill would be. He entreated them not to pass a measure which would inflict intolerable wrong on those the prohibition of whose marriages was not repealed, and which, proceeding upon no sound principle, would be an outrage upon morality and reason, which Parliament had no right to permit.
LORD O'HAGAN *
My Lords, if the operation of the Bill, submitted for the approval of your Lordships, had been confined to England or to Great Britain, I should have preferred to give a silent vote on this occasion. I cannot pretend to understand the moral condition or the social exigencies of this great country as well as those whom I address, and I should have been content to listen to the 1888 teachings of their larger experience and more accurate knowledge. But the Bill extends to Ireland, with which I am better acquainted—which has not asked for it, and does not want it—and where, I am satisfied, the majority of the people dislike its principle, and would repel its operation. I have formed a strong opinion on the question, and I desire to express it briefly. In common with my noble Friend (Lord Houghton) who originated this discussion, in a very temperate and graceful speech, I have the sincerest sympathy with any innocent persons who suffer from the law as it exists. From some of them I have received communications which have touched me deeply. But I cannot pity those by whom that law has been deliberately violated, on the prompting of passion or in concession to a supposed expediency, without consideration of the fatal results to trusting women and unborn children. If it were possible to relieve in cases of real hardship, with due regard to the momentous issues involved in the controversy, I suppose we should all be glad to aid in doing so; but we have to consider what is right and wise, and for the highest interests of the society in which we live. We cannot play with them according to the impulse of our feelings. We are bound to deal with them as judgment and conscience dictate when we come to touch that family life which is the very corner-stone of our social state, and, according to its moral condition, becomes the glory or the shame, the strength or the destruction, of a people. The noble Lord who moved the second reading sought to overbear us by the weight of precedent, and made many references to Germany, Canada, and the United States. It was a dangerous argument, and, well considered, does not assist my noble Friend; for, assuredly, authority is against him. The promoters of this Bill are encountered by the harmonious teaching of the Christian Church, and the unbroken tradition of the Christian people, since Christianity first rose into existence. I do not enter on the Scriptural dispute, or deal with the famous passages of Leviticus as establishing an irrefragable dogma. I look to the vital principle and sure foundation of Christian marriage, declared at the birthtime of the human race, and consecrated by the affirmation of the Redeemer, that the 1889 husband and wife are "one flesh," bound together in a perfect and holy union, and each absolutely belonging to the other, with a complete identity of love, hope, interest and life. The great contemplative poet of our age has put it thus—Wedded love with loyal Christians,Lady, is a mystery rare;Body, heart, and mind in union,Make one being of a pair.And from that old conception of the marital relations has alway been deduced the inference that the kinship of the wife should be held to be the kinship of the husband; and that the wife's sister should not be the husband's wife. This principle has, unquestionably, been maintained at all times since the earliest days of Christianity. It was proclaimed in the Apostolic Constitutions before the Nicene Council. It became a part of that great system of jurisprudence which was generated when the Christian civilisation rose on the ruins of the effete and corrupt Imperialism of Rome; basing the hope of the world on the strictness and continency of the family relations, and raising up woman from her low estate to soften and to purify the rude society around her. The Theodosian Code condemned the practice which we are asked to approve, and declared marriage with a deceased wife's sister to be unlawful. And thenceforth, for many a century, down even to our own time, the doctrine of that Code has been held intact by famous theologians and solemn Councils. It was the doctrine of Basil, and Ambrose, and Augustine. It was the doctrine equally of the East and the West. It was affirmed by ecclesiastical assemblages in the various countries of Christendom, as they were successively comprehended within the fold of the Church; and it commanded the assent of all of them. The dispensing power claimed by the Popes was at first resisted and denied, on the ground that the prohibition was absolute and mandatory by the law of God. And, when that power was at length established, it continued emphatically to witness the inherent impropriety of a practice which was permitted only in the most special circumstances for the gravest causes, and to prevent worse results. So it remains at this hour; for although in the Roman Catholic Church dispensations are obtained, they are got with difficulty, and 1890 because of plainly coercive exigency. This Bill has nothing to do with marriages so allowed. It gives universal licence; and the memorial of the Catholic clergy, to which reference has been made, praying only for the legalisation of such unions when authorised by special permission, in no degree involves the approval of its principle. The Greek Church, whatever may have been its decadence and shortcoming, is a venerable witness to the discipline of Christian antiquity; and in it marriages of this sort are deemed to be incestuous and incapable of being validated at all. If we pass from ancient times, and come down to the Protestant Confessions of later days, we find that the unlawfulness of such a marriage was asserted equally by Lutherans and Calvinists, in Scotland, in Geneva, and in France; whilst in the Church of England it has been consistently proclaimed. Then the fact relied on by the advocates of the measure—that on the Continent of Europe such marriages are allowed in many countries, comes rather in aid of the argument against them; for in most of those cases they can be legalized only by special dispensation. The Commissioners who reported on the question in 1848, put the matter thus—Protestant States on the Continent of Europe, with the exception of some Cantons of Switzerland, permit these marriages to be solemnised by dispensation or licence, under ecclesiastical or civil authority."—[Report, p. vi.]Exceptio probat regulam. The need of dispensation shows that the act is disapproved. It may be otherwise in some parts of Germany and America, to which my noble Friend so confidently referred; but the result of the abrogation of the old Christian discipline there is surely such a state of things as should deter instead of attracting us, and furnish a solemn warning rather than an inducement to imitation. We cannot approve of indiscriminate connections, lightly formed, and dissolved as lightly, on the first gust of temper, or the first assault of ungoverned passion, which it is a mockery to dignify by the sacred name of marriage. Therefore, my Lords, on the issue of authority raised by my noble Friend, we have the testimony of the Christian world from the earliest times against this innovation, and, for my own part, I should require the most potential reasons to overbear that testimony— 1891Securus judicat orbis terrarum.We are the "heirs of all the ages," and we should not lightly set aside the instruction which they give. If you would maintain a Christian civilization in the world, hold high the ideal of the Christian marriage. Do not abase its dignity; do not dim its brightness. The time is not apt for meddling rudely with that greal ideal, or, as you are asked to do to-night, with principles which are its bulwarks, and from which it derives its beauty and its strength. Old landmarks are vanishing away. Doctrines of international law and political justice, which long governed the public conscience of mankind, are losing their power. The elements of socialistic anarchy are working through the nations; and we should beware of precipitating the time when laxness as to the marriage bond may help, to bring us to the condition of Rome, as described by Gibbon— "when marriages were without affection, and love was without delicacy or respect;" and when corruption, in that regard, was one of the worst instruments in the overthrow of the mightiest of empires. But, my Lords, if all I have said were to be disregarded; if there were no tradition, or authority, or religious influence to warrant the rejection of this Bill, I should still oppose it in the interest of society, and for the maintenance of the dignity and purity of the family life. I should oppose it, because it is calculated to alter the relations of the sexes in a way most serious and most mischievous. The connection of the brother and the sister is delicate and tender, and so ought to be that of the brother-in-law and the sister-in-law—a connection of love and trust and mutual helpfulness, without the taint of passion or irregular desire. And thus it will continue, if you refuse to make legal marriage possible between them. Temptation is bred of opportunity, and dies when it is lost. Give the prospect of the marital union which this measure would validate to a household now peaceful and harmonious, and are you sure that the husband will remain free from evil thoughts and wrongful aspirations, which he never before indulged? May not the dying wife find her long hours of pain made doubly miserable, when she feels herself tortured by jealous thoughts of the probable relations of her husband and her sister, commencing 1892 in her lifetime and in her presence, and to be consummated as soon as the grave has shut her from their sight? And for the maiden sister, would she not be precluded, in the circumstances this measure would create—just in proportion to her delicacy and gentleness and modest fear of misconstruction—from entering a home where she would be a "ministering angel?" And if she should, notwithstanding, enter it—resolved to exhibit the unselfish devotion and heroic self-sacrifice which so ennoble the nature and the life of woman—would there be no cause for fear lest she should sometimes be distracted by the bewildering and corrupting thought, that it might be her lot, by the licence of the law, to mount as a nuptial couch the bed on which her sister, in her agony, had awaited dissolution? I repeat, if there were no question of religious policy or authoritative teaching in the matter, for social reasons only we should be earnest in our resistance to this Bill. And why should we ignore the wisdom of the past and imperil the hopes of the future by adopting such a measure? Three reasons mainly seem to me to have been suggested in the course of this debate for the adoption of it. It is said that we have no right to limit the freedom of action in matters like this, if not absolutely immoral and forbidden under any circumstances and with any sanction. But are those who argue so prepared to press their contention to its consequences? Will they do away with all prohibitions on the score of affinity, and deny to the State the right of imposing any? Will they refuse to the wife the privilege of marriage with the brother of her husband, whilst he obtains licence to marry with her sister? Will they tell those who urge that polygamy is lawful, and cite the authority of Milton to sustain their opinion, that the law must not interfere, and passion shall have its way? They cannot, and they will not. The Legislature must have power to regulate, more or less, the conduct of the people for their moral good. Then it is said that, because so many suffer from the present restriction upon marriage, it ought to be abrogated. A bold argument, involving an evil consequence—if deliberate lawbreakers are to be encouraged to trample down the restraints to which they are bound to submit, succeeding all the more by reason of the 1893 audacity of their defiance of those restraints, and of the very flagrancy and frequency of their offences. And, finally, it is said that this is a poor man's question. I doubt it much. I am assured by those who know England well that the persistent agitation of it, for so many years, has been maintained not by the poor but by the rich, who have an interest in it as leading to the condonation of their own illegality in the past, and not as securing a social improvement in the future. And I do not know that the poor man does not need to be guarded from doing what is evil—dangerous to himself, and injurious to his family—as much as the rich. Nor do I believe that there is any necessity upon him to act against the policy of the law. In my own country, where such marriages are practically almost unknown, the poor feel no need of them, and no desire to enter into them. And this observation brings me back to Ireland, which, I repeat, in my opinion, does not want this measure, and should not be forced to have it. We have been, so far, I thank God, saved from the infliction of a Divorce Court such as you have in England. I do not believe that any class or denomination of Irishmen desire such a law, with its long train of temptations, evil examples, and inevitable corruptions; and yet I fear that of it this Bill, if successful, would surely be the herald. In these matters we Irishmen desire to be let alone. We have had much to endure. We have had penury and persecution; we have been cursed by intestine dissension, and disgraced by social outrage; but, through all chance and change, we have preserved very rich possessions in the sacredness of the Irish hearth and the purity of Irish womanhood. And from these we shall not willingly be parted. Better times have come; material progress carries us onward; civil strife passes away; and equal laws establish the reign of justice. But we will not abandon, in our happier day, these precious things which we have inherited from the struggles of the past. I fear that measures such as this must bring them into peril, and therefore I oppose it. I grieve that my conclusion is not in accordance with the views of most of those with whom it is my good fortune to act politically in this House; but I cannot falsify my own convictions, and I am coerced to vote against this Bill.
said, he desired to read to the House a letter which he had received when this subject was under discussion in their Lordships' House on a former occasion. The letter was from Dr. Spratt, Provincial Vicar General of Ireland. That letter said—My Lord,—I most respectfully beg to inform your Lordships that the Roman Catholic clergy of Dublin have watched with very great interest the progress of the Bill to Legalize Marriage with a Deceased Wife's Sister,' and we are much gratified at learning that it has, for the seventh time, successfully passed through the House of Commons by a very large majority, and we all sincerely hope that it will be equally successful in its passage through the Upper House, of which you are a distinguished Member. I beg also to state that 88 of our clergy here, which include our vicars general and parish priests, have signed a Petition for presentation to the House of Peers, and we are extremely anxious that such marriages, when they have received the sanction of the Church by dispensation granted, should be valid for all civil purposes. May I, therefore, most respectfully solicit your Lordship's vote and interest in favour of the Bill, and assure you that there is no other country in the world where such marriages of Catholics are civilly invalid.—I am, with great respect, your Lordship's most obedient servant,JOHN SPRATT, D.D.,Provincial O.C.C. of Ireland.He believed that to be the opinion of most Roman Catholics. It could be proved by ancient authorities that these marriages were in existence at the time of Our Lord, and he had a right to ask when and how they ceased to be permitted? St. Jerome confirmed St. Augustine and Theodoret in holding the interpretation of the chapter of Leviticus which made marriage with a deceased wife's sister lawful. Jerome said, as plain as words could make it, that the verse prohibited marriage with a wife's sister during her lifetime—" Sororem uxoris tuœ in pellicatum illius non accipies, nec revelabis turpitudinem ejus, adhuc illâ vivente." The concurrent testimony of the three greatest Bible-scholars of their age —the end of the 4th and the beginning of the 5th century— in addition to the Septuagint, the Syriac, and Italic versions, were sufficient to show the opinion of the Church for the first 400 years. There were two facts which met every objection to these marriages—that they were acknowledged by all other Churches, and that they were acknowledged by our own Church, for one of its Articles was that—" As a Church ought not to decree anything against God's Word, so besides the same ought it not to enforce anything 1895 to be believed for necessity of salvation." He denied that the Bill would open the door to other marriages. There was a broad distinction in the Levitical law between the relations of the husband and the wife. In Smith's Dictionary of the Bible it was stated—The Hebrews regarded the relationship existing between the wife and her husband's family as of a closer nature than that between the husband and the wife's family. As illustrations of the difference we may note—first, that the husband's brother stood in the special relation of Levi's brother-in-law; second, that the nearest relation on the husband's side stood in the special relation of avenger of blood to the widow; third, that an heiress was restricted to marriage with a relation on her father's side. As no corresponding obligations existed in reference to the wife's or the mother's family, it follows almost as a matter of course that the degree of relationship must have been regarded as different in the two cases, and that prohibitions might on this account have been applied to the one from which the other was exempt.He entirely denied that the Bill could open the door to other marriages not included within its scope—he asked for nothing which permitted in the shape of marriage what was not permitted by the Word of God. Leaving the religious, and coming to the social question, it was asserted that painful feelings would arise between the husband and wife's sister if they were permitted to marry, and if she resided in the same house with him. Still more painful feelings, however, arose from the present state of the law when the sister of the deceased woman married the husband, which was of common occurrence. But if the wife's sister and the husband lived together in concubinage, and no form of marriage took place, no record was made of the occurrence. The law concerned the working classes more especially. He knew as a fact that in a number of instances in manufacturing towns, in which men had been left widowers with a number of children, they were left to bring up their families in a two-roomed house, with no one to assist but the late wife's sister. Their Lordships knew what human nature was, and the temptation was too strong for human nature. The result often was, not marriage, but, what was a great deal worse, concubinage. It was said that women were opposed to these marriages. Living women might be opposed to these marriages, but dying women were in favour of them, and it was they whose voice 1896 ought to be consulted. He had received a letter which accurately described the feelings and wishes of many women on their death-beds. The writer said—In the November of 1857 I suffered the loss of my dearest wife, leaving me, a young man—for I am not yet 35—with five infants, the eldest not six, and the youngest only nine months old. Her younger sister had been long residing with us, and on her death-bed she told me that she should die happy in the certainty that her sister would be the future mother of her children, and she begged she would cultivate the friendship of a neighbouring clergyman's wife who stood in the same relationship to his former wife as she wished her sister to stand to her.People knew very well that these marriages were not forbidden by the law of God, and they knew that no Church presumed to forbid them save the Church of England—they knew also that the House of Lords was the only legislative body in the world that forbade them. If their Lordships believed that these marriages were opposed to the Word of God, they were, of course, justified in prohibiting them; but if they were aware they were not forbidden by God's law, then they should remember that they must take nothing from that Word and add nothing to it.
THE BISHOP OF RIPON
said, that as he should probably be, as on a former occasion, the only Prelate who supported this Bill, he wished to explain that it was not from any want of deference to the opinions of those whom he respected that he stood forward to advocate the measure. As long, however, as he had the honour of a seat in that House, he should not shrink from expressing the reasons that governed his votes. The friends of the Bill had gained this advantage during the protracted discussions that had taken place on this question, that they were permitted more and more to see how very little ground there was in Scripture upon which the opponents of this Bill could rest their opposition. They were all agreed that the ultimate appeal on this question must be to the Word of God. If these marriages were really opposed to the voice of Scripture he was persuaded that not one of their Lordships would wish to legalize them. If, on the other hand, the deepest research as to the testimony of Scripture led to the conclusion that the Divine sanction of Scripture might be claimed for these marriages, was it wise, right, 1897 or politic for the Legislature of this country to uphold restrictions which were not imposed by the law of Scripture? Their Lordships had heard a great deal in condemnation of the particular mode adopted by the promoters of this Bill to further their object; but what had this to do with the real question at issue? For himself he knew nothing of the secret proceedings to which reference had been made, and had had nothing to do with the agitation. This was a part of the question that he did not care to look at. The only question he had to ask himself was whether it was his duty to vote for or against this Bill. The main objection seemed to rest upon certain supposed social evils which would result were this Bill to be passed into law. For instance, his right rev. Brother who spoke lately (the Bishop of Oxford) imagined that supposing the Bill became the law of the land great difficulties would arise, because no provision was made with regard to other marriages. His right. rev. Brother inquired — "What shall I say to any one who asks me what he is to do if he wishes to contract a certain marriage which is not provided for by this Bill?" He would suggest to his right rev. Brother the reply which he was constantly in the habit of making in such cases—namely, "As long as the law remains as it is, you must respect and obey the law; but if the law is altered, then your position will also be altered." It was somewhat remarkable that those who brought forward as an objection to the Bill the social evils which might result from its passing into law drew entirely upon their own imaginations, and were not supported, as far as he was aware, by any known facts. On the contrary, in the countries where such marriages were legal, these social evils had not arisen. For instance, he would cite the testimony of the Bishop of Ohio, who stated that in his particular diocese these marriages were legal, and he added—"I have not known that any social disadvantages result from them." Why, then, should we imagine that these social evils would arise in this country if the Bill became law? He would venture, however, to ask whether there were no social evils arising from the present state of the law? He held in his hand a letter addressed to him by a gentleman, who signed his name, and who said— 1898A residence of 20 years in what is called the black country' has convinced me that the existence of the present law has caused, and is daily causing, a great amount of immorality, inasmuch as hundreds, who cannot afford to be married abroad, are living together as man and. wife, without being married at all. It has frequently come within my knowledge, that clergymen in the black country have often given notice to their poor parishioners that they would marry, free of expense, any persons who were cohabiting together; but in the case of any man living with his deceased wife's sister, such clergymen have been compelled by the state of the law to refuse such applications.From his own experience as a clergyman in large towns, and since his elevation to the Episcopate, he was able to endorse the statement of the noble Baron who introduced the Bill to-night, that the present state of the law was regarded by many as a very grave oppression, and that it was in many instances a fruitful source of immorality. Because he believed that what the Bill proposed to effect would be in perfect harmony with Holy Scripture, that it would remove a grievance which ought not to exist, and that it would take off a restraint upon the liberty of men in that in which they ought to be guided by their own private conscience, he should give his earnest and hearty support to the second reading of the Bill.
§ THE EARL OF DUDLEY
strongly objected to the Bill, because it operated on the face of it as a Bill of Indemnity for those persons who had contracted these marriages in violation of laws both human and divine. If it could be made out that the suffering was among great bodies of men belonging to the working classes and that the interference of Parliament would remove immorality he would not raise his voice against the Bill, because the working classes generally acted on impulse in matters of this kind and were apt to disregard any law. But the offenders against the existing law and who sought to get it changed belonged to those classes of society which knew what law was, and, therefore, in disregarding it their offence was all the more flagrant.
THE LORD CHANCELLOR
My Lords, this is no party question it is, however, a question which affects society in general—not only those who ask for a change of the law for their own particular benefit, but equally those who do not want the law changed. Before I say anything as to that which is the first 1899 proposition of the Bill—namely, the expediency of amending the law respecting marriage with a deceased wife's sister—I will follow the example of my noble Friend who has just sat down (the Earl of Dudley), and make some observations on the Bill itself—which a great number of those who have addressed the House have not paid much attention to. The Bill does not attempt to follow out its own principle to its proper limits, or to reconstruct the law of marriage on any consistent or symmetrical grounds; and consequently it will pave the way to further agitations and further changes. I feel bound to say, having regard to the office which I still hold, that I think it is hard to conceive a more dangerous, a more alarming invitation to systematic, deliberate violation of the law than that contained in the first clause of the Bill. See how the matter stands. Down to the passing of Lord Lyndhurst's Act these marriages were, and always had been, illegal—as illegal as they are now —and I am surprised to hear some of the old misconceptions on this point revived by the noble Lord who introduced the Bill. However that may be, after the passing of Lord Lyndhurst's Act all possibility of misconception about this part of the law of marriage was at an end. From that time forward it was known to all men that every such marriage—or rather attempt at marriage, for marriage it is not—was prohibited and was absolutely void. What said the right rev. Prelate who just now so ably addressed your Lordships? He could see no difficulty whatever in the question which appeared so distressing to his right rev. Brother— "What answer am Ito give to any woman who, after this Bill is passed, wishes to marry her deceased husband's brother, or to any man who desires to marry his deceased wife's niece?" "Oh," says the right rev. Prelate (the Bishop of Ripon), "there can be no difficulty about the answer. Tell them to obey the law as it stands while it is the law." And yet the same right rev. Prelate is going to vote in favour of a clause which says that no marriage heretofore contracted in violation of the law shall be, or be deemed to have been, void. What will be the value of such admonitions from right rev. Prelates to persons troubled in their consciences, if such persons are told in one breath "you 1900 must respect the law while it is the law," and in the next breath the same right rev. Prelates come here and say, "I am prepared to vote in favour of those who have not respected the law, so that every one of these illegal marriages shall be declared good from the beginning." Will not persons be encouraged by such legislation to disobey the law, and get up societies in order to induce the Legislature to sanction further disobedience? Are we to say that a certain amount of perseverance in systematic disobedience to the law shall not merely induce Parliament to alter a law—which may in some instances be right—but to pass a statute of ex post facto legalization in favour of the whole body of lawbreakers for many years past? To pass such an Act, repealing the law retrospectively in favour of all law-breakers, is really to tell the people "you are under no obligation to obey the laws." But the matter does not stop there. Every clause of the Bill is more and more extravagant as we go forward. What is the next clause? It is felt that if you simply passed an ex post facto law legalizing all these marriages, you might be marrying over again people who had contracted such unions, but who had since repented and married somebody else. It is provided, therefore, that the Bill shall not invalidate any legally subsisting marriage in order to restore the former illegal one. But everybody else, who, having repented of breaking the law, and having treated the marriage as void, has separated from the person who never was his wife, shall now be married compulsorily and retrospectively by the Bill to that person. Is that the sort of legislation of which your Lordships will approve? You not only give to the law-breakers themselves everything they ask, but you say that persons who have regretted their disobedience of the law shall be forced back into their original illegal relations. Then another difficulty presented itself to the framers of the Bill. What are we to do with respect to rights of property, vested and expectant? You cannot take away from legitimate children that which by law belongs to them, and give it to their illegitimate brothers and sisters. There may be remainders in expectancy under wills or settlements. The first wife may have left daughters only, who would succeed 1901 to a settled real estate in preference to the illegitimate sons of her sister; though, if those sons had been legitimate, they would have had the prior right. Or if the settlement were of personal estate, the first wife's children would take the whole to the entire exclusion of her sister's children, by the law as it stands; but if those children had been legitimate, they would have been entitled to equal shares. Or under such a will or settlement, if the first wife left no child, her sister's children being illegitimate, a cousin, a nephew, or a half-brother may have acquired rights. The Bill therefore says that all existing equitable and contingent rights shall remain the same after the passing of the Bill—in other words, that while for some purposes the children of these marriages will be recognized by the law as such, they will not be so recognized for other purposes. They are to be still illegitimate as regards estates under settlement, but in other cases they are to be legitimate; you establish them in inconsistent relations under the same Bill. I think I have said enough to show that if your Lordships should at any time be persuaded, contrary to my own conviction, that the main principle of the Bill is right, you must set to work to give effect to your wish in a totally different manner from that now proposed. You must not by retrospective legislation try to render legal that which was not and cannot properly be made so. You must consider how far your principle ought to go, and I am sure that if you pass a Bill of this description, you can never stop short of the abolition of all restrictions on marriages of affinity. If so, let the existing prohibitions be removed by an intelligible and consistent measure. Do not let us have piecemeal legislation concerning so important a matter, for the main purpose of giving to persons who have broken the law the same rights and privileges which they would have if they had obeyed the law. I will now, with your Lordships' permission, say something as to the principles involved in this question. I have said that all members of society are interested in it—not only those who have married or are likely to marry their deceased wives' sisters, but those who have not done so, and are not desirous of doing so. Every married man whose wife has sisters has 1902 an interest in that condition of society which is produced by the state of law, which makes his wife's sister his "sister-in-law." Our popular expression exactly hits the principle. The law makes the wife's sister his sister, and if you alter the law, the wife's sister, for domestic purposes, will be his sister no longer. Do you want prohibitory laws for any purpose of this kind, or do you not? I think so. It is necessary and important so to fence round the sanctity of the domestic hearth upon the subject of marriage as to make safe and secure, as far as law can do so, the unrestrained and peculiarly affectionate intercourse which ought to exist for the happiness of families between the closest and nearest relations. If the principle be a right one, of course it extends to all the immediate members of one's own family. We know that the brutal passions of some of the lowest order are capable of overleaping even the natural barriers which exist between parent and child—between brother and sister. But as a general rule the repugnance to such unnatural connections may be so great that they would be rare even if no prohibitory laws existed. When, however, you pass from these closest relationships, everybody feels that legal prohibitions are necessary and salutary. The moment you go a little further in the circle of relationship the necessity for prohibitory law becomes stronger; because the more remote the connection—if it is still within the line of unrestrained domestic intimacy—the more important it is to fence it. Take the case of uncle and niece. We know that in some countries dispensations are granted for such marriages; and there, the principle of such unions being admitted, men are not restrained by natural repugnance from forming them. You want a fence in such a case, when the relation is half paternal and filial, and yet not wholly so. You want it peculiarly in all cases of affinity, for the very reason that in those cases the natural repugnance is less strong. But the question is asked, "Do you want the prohibition in cases of affinity at all?" Surely you do. Is not the wife to associate in your home with her sisters on the same footing as before? Is she to be a sister, or is she to be a stranger in her sister's home? Or do you wish that marriage shall make a difference in the 1903 position of the wife and her sisters, when she feels that one of them may become the possible wife of her husband? So with regard to the husband's brother. Is he to be only a brother to the wife, or to be looked on as a possible husband to the wife? The truth is, that the husband's and the wife's relations are so united that you cannot make their intercourse really sisterly and brotherly—you cannot make it unrestrained—unless you apply the same rule to both of them. That is the principle on which the law has hitherto proceeded; and I say it is a most wise and salutary law that you should carry the fence as far in favour of the relatives of the wife as of the relatives of the husband, so that the two may be thoroughly identified, and the intercourse which is perfectly unrestrained as to the one, should be equally unrestrained as to the other. Is it possible that a husband should treat a wife's sister as his own sisters if he were allowed to marry them? And would not children suffer as well as husbands and wives? We constantly hear the argument that wives' sisters would prove the best stepmothers the children could have. But how often, if this Bill passed, would motherless children be deprived of the care of an affectionate aunt! They need not be so deprived now, even during the widowhood of the father. Most of us know cases in which the aunt takes care of the children in their father's house, without scruple or reproach. If you pass this law you will deprive them of that care in every case in which the husband is restrained from marrying his deceased wife's sister, or the sister from marrying her brother-in-law—whether by want of inclination or by religious feeling. It is impossible that a woman can occupy the position of a sister and at the same time be by law a marriageable person. Our divorce law sets a special mark of infamy upon the case of adultery with a wife's sister. I should be sorry, whatever the marriage law prescribed, to see it otherwise. These are good, solid reasons, of a social and natural character. Some arguments have been submitted to your Lordships based upon religious considerations. One noble Lord (Viscount Lifford) has sought to establish it as a fundamental principle that we are not to prohibit anything by law which cannot be demonstratively proved to be forbidden by some text of 1904 Scripture. I should like to know how the noble Lord who laid down that principle would prove that we have a right to prohibit polygamy? Certainly not from that particular text in Leviticus upon which he relied for his argument, because if that text refers to a natural sister of the wife at all, and if, as the noble Viscount assumes, it implies the lawfulness of that which it does not in terms forbid, the inference is inevitable, that it treats as lawful a man's marriage during his wife's lifetime with any other woman than his wife's sister. Opinions have been forcibly expressed by some in favour of polygamy, and one reverend author, not indeed a Bishop, but the brother of a Bishop, and himself a popular clergyman in the last century, traced many of the present evils which trouble us to its prohibition in this country. When a measure similar to this was before the House of Commons some years ago, I read an extract from The Times citing the following passage from The Chicago Tribune. Your Lordships will notice the glowing colours in which the writer paints the happy results of the introduction of polygamy into Salt Lake City—But about the practical operation of polygamy, as you call it. That is what you most probably want to know, and I shall enlighten you, from my observations and experience. When I came to Deseret there were not many who were in the enjoyment of more than one wife; and many, or most, of the new corners were opposed to it. But as they saw how beautifully and harmoniously those families lived where there were two or more wives, their prejudices gradually gave way, and among no class was this change more apparent than the women. At the present time, if a vote were taken on the subject, I venture to say that nine out of every ten women who have lived here two years would sustain our present social system in this particular.I think such a passage as this, if it does nothing else, may help to teach us the value of testimonies to the successful results of such innovations upon the marriage law of Christendom as may have actually been tried in some other countries. I do not want to compare the morality of other countries with the morality of our own. We comforted ourselves with the belief that respect for the sanctity of marriage stood high in this country until the Divorce Court was established. We cannot speak quite so complacently now, but marriage is still held among us to be holy and. honourable—all men 1905 spoke well of it, or the few who would speak otherwise, dare not lift their heads or utter their opinions with a loud voice. How is it that marriage in some other countries is less respected? Is it not true that the institution of marriage is there canvassed in a manner calculated to disturb men's respect? Do we not know that the facilities for divorce in those countries depreciate the estimation in which the marriage vow is held? Even in the United States veneration for the marriage tie is not quite so universal as one might wish to see it throughout all classes. Returning to the religious argument, I entirely demur to the demand that we should demonstrate from the letter of the Scriptures, that the law of marriage existing in this country is the Written Law. I believe that we can, and that we do collect from Scripture the principle on which our present marriage law is founded, and the proper limits to which its prohibitions do and ought to extend; but I think that this is not a fitting assembly wherein to enter upon that line of argument, for there are persons—happily not in this House, but outside—who would decline to argue the question on that ground, refusing to admit the authority, perhaps of religion, perhaps of the Scriptures, and at all events of the Old Testament; it would raise a number of theological questions which could not be discussed here. But if we are to prohibit only such marriages as are prohibited by the dry letter of the Old Testament, we must repeal the prohibition in the case of 13 degrees prohibited by our law and not prohibited by the letter of Leviticus; and, on the other hand, if you endeavour to arrive at the principle contained in that chapter in Leviticus, and lay down a marriage law in accordance with that principle, you will arrive at our present marriage law. There is one other very important point. We have been told that this is a poor man's question, and that the poor ask for this amendment of the law. My experience and information do not support this. In 1859 I received, through an eminent Prelate, a number of letters, which I have in my hand, from clergymen who had laboured many years in some of the largest and poorest centres of population. These clergymen stated, that in their experience the poor did not generally approve 1906 these marriages, and that they prevailed less among the poor than among persons of a higher class. One of those to whom I allude is Dr. M'Neile, the present Dean of Ripon, for many years a well-known clergyman of Liverpool; another is Canon Stowell, for several years a leading clergyman of Manchester; another is the Rev. Mr. Auriol, of St. Dunstan's; another is the Rev. Mr. Rowsell; and one is a Scripture reader, who laboured among the poor for a great number of years, and a letter from whom I will read to your Lordships. To the same effect is the testimony of a right rev. Friend of mine, the Bishop of Rochester, at that time rector of Kidderminster. The Scripture reader of whom I have spoken, writing on the 26th of April, 1861, says—Being in daily and constant association with the labouring and poorer classes; as one living among them, and being in their homes in the most poverty-stricken neighbourhoods; intimately knowing hundreds of the families of the superior working men, and also of those in the deepest poverty; being in the habit for years past of daily teaching many of the children of the very poor, and also being gratuitously occupied, and counting it a great privilege in reading. …. every Sunday to upwards of 200 men of the labouring class, I know from my own observations and conversations I have had with many on the subject of the proposed Bill that the marriage with the deceased wife's sister is not approved, and is very rarely to be met with among them.My noble and learned Friend (Lord Hatherley), having taken great pains to ascertain the facts among the poor of Westminster, bore the same testimony. If we were to bring together all the aberrations of our law in matters relating to the connection of the sexes we should no doubt have a very alarming and very lamentable catalogue of evils; but does anyone suppose that by adapting our law to such a state of things we should not produce a greater amount of mischief? For these reasons, my Lords, I earnestly entreat you not to assent to the second reading of this Bill.
THE EARL OF KIMBERLEY
said, after the elaborate arguments which their Lordships had heard against the Bill, it was incumbent on some one who supported it to say a few words. His noble and learned Friend on the Woolsack had based much of his argument on the difficulties that would arise from an alteration of the law. His (the Earl of Kimberley's) answer was, that no 1907 alteration could be made in the marriage law which would not give occasion to difficulties; and that the objections of his noble and learned Friend were such as could be easily met in Committee, and furnished no ground for refusing to read the Bill a second time. The right rev. Prelate (the Bishop of Oxford), who had spoken for the symmetry of the existing law, and declared that he would uphold that symmetry, and that he cared nothing for the feelings, the passions, or the affections of those who were concerned in this matter; all that he looked to was the question of pure logic. But it had never been the custom in this country to legislate on a principle so absolutely unsound and altogether dangerous, as that of disregarding the feelings, wishes, and passions of the people—and especially in a question of this nature. His noble and learned Friend on the Woolsack had said that we must fence round the sister of the wife with this prohibition, and then went into an elaborate expression of admiration for it. But he (the Earl of Kimberley) had no such admiration for prohibitions. His noble and learned Friend had signally failed in proving that the prohibition did fence round the family circle. The fact was that the sister-in-law could never be regarded in the same light as the blood sister. He did not wish to detain their Lordships by many remarks, as his object in rising was merely to show that there were some who still adhered, as he did, strongly to his opinions in favour of the Bill, and he hoped that their Lordships would give it a second reading.
§ On Question, That "now" stand part of the Motion? their Lordships divided: —Contents 49; Not-Contents 74: Majority 25.
§ Resolved in the Negative.
§ Bill to be read 2a this day six months.
|Beaufort, D.||Granville, E.|
|Bedford, D.||Grey, E.|
|Cleveland, D.||Harrington, E.|
|Saint Albans, D.||Inns, E. (D. Roxburghe.)|
|Queensberry, M.||Kimberley, E.|
|Westminster, M.||Minto, E.|
|De La Warr, E.||Bolingbroke and St. John, V.|
|Exmouth, V.||Keane, L.|
|Halifax, V.||Lawrence, L.|
|Lifford, V.||Leigh, L.|
|Ripon, Bp.||Overstone, L.|
|Worcester, Bp.||Ponsonby, L. (E. Bess-borough.) [Teller.]|
|Acton, L.||Robartes, L.|
|Auckland, L.||Romilly, L.|
|Balinhard, L. (E. Southesk.)||Rosebery, L. (E. Rosebery.)|
|Belper, L.||Seaton, L.|
|Calthorpe, L.||Sheffield, L. (E. Sheffield.)|
|Dormer, L.||Stanley of Alderley, L.|
|Ebury, L.||Teynham, L.|
|Gage, L. (V. Gage.)||Tyrone, L. (M. Waterford.)|
|Houghton, L. [Teller.]||Vaux of Harrowden, L.|
|Selborne, L. (L. Chancellor.)||Rochester, Bp.|
|Buckingham and Chandos, D.||Bagot, L.|
|Richmond, D.||Boston, L.|
|Rutland, D.||Braybrooke, L.|
|Bath, M. [Teller.]||Chelmsford, L.|
|Bristol, M.||Clinton, L.|
|Bute, M.||Colchester, L.|
|Exeter, M.||Colonsay, L.|
|Salisbury, M.||Congleton, L.|
|Winchester, M.||Crewe, L.|
|Amherst, E.||Denman, L.|
|Beauchamp, E. [Teller.]||Digby, L.|
|Bradford, E.||Egerton, L.|
|Devon, E.||Eliot, L.|
|Dudley, E.||Ellenborough, L.|
|Eldon, E.||Ettrick, L. (L. Napier.)|
|Erne, E.||Fitzwalter, L.|
|Howe, E.||Foxford, L. (E. Limerick.)|
|Lauderdale, E.||Gifford., L.|
|Nelson, E.||Hatherley, L.|
|Powis, E.||Hawke, L.|
|Romney, E.||Heytesbury, L.|
|Strathmore and Kinghorn, E.||Ker, L. (M. Lothian.)|
|Waldegrave, E.||Monteagle of Brandon, L.|
|De Vesci, V.||Northwick, L.|
|Hardinge, V.||Redesdale, L.|
|Hawarden, V.||Saltersford, L. (E. Courtown.)|
|Chester, Bp.||Saltoun, L.|
|Chichester, Bp.||Scarsdale, L.|
|Ely, Bp.||Sherborne, L.|
|Lichfield, Bp.||Silchester, L. (E. Longford.)|
|Norwich, Bp.||Stratheden, L.|
|Oxford, Bp.||Wynford, L.|
§ House adjourned at a quarter before Nine o'clock, 'till To-morrow, half-past Ten o'clock.